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Legal status of breath test refusals in Illinois

In some states, for instance, Vermont, a refusal to submit to a breath test can in and of itself be a crime in addition to the separate crime of Driving Under the Influence (DUI). At the present time, in Illinois, the rules on refusal are different from those in Vermont and some other states.

A DUI arrest begins when a driver has an encounter with law enforcement. The officer might see what he believes to be criminal behavior, including something as basic as a traffic code violation. Or perhaps a driver is slumped behind the wheel of the car being operated, or the officer is otherwise performing a “community caretaking” function.

Sometimes the stop involves an anonymous tip of impaired driving made by a citizen. It could be another driver, a pedestrian or the guy serving food at the drive up window. As long as the tipster is shown to be a “reliable source”, a stop in this circumstance does not violate the United States Constitution’s Fourth Amendment prohibition against unreasonable searches and seizures.


Once the encounter occurs, the police will begin investigating possible signs of alcohol impairment such as an odor of alcohol, slurred speech, bloodshot eyes, confusion, and difficulty retrieving the driver’s license, insurance card and proof of registration to name a few. The officer will then instruct the driver to step out of the car and come to his squad car. During this procedure he will be looking for further signs of impairment such as poor balance and difficulty walking.

Next, the officer will put the accused through a series of performance tests known as the Standardized Field Sobriety Tests. The three tests recognized as valid are the Horizontal Gaze Nystagmus, the Walk-and-Turn and the One-Legged stand.

The officer “scores” each of the three tests and determines if further testing is appropriate. If so, the officer will ask the driver to take a Preliminary Breath Test on a small handheld device. After having requested these tests, and taking into account all of his observations, the officer will make a determination of whether to make a DUI arrest.

After the arrest, the arrestee will be driven to the police station. Up to this point, there is no criminal or driver’s license consequences involved with not agreeing to any tests. In other words, refusing to submit to the Standardized Field Sobriety Tests or take the Preliminary Breath Tests is not punishable. Nonetheless, most individuals submit to some or all of these tests, either believing that their “cooperation” will help them or because the officer subtly suggests that performing the tests may help their cause.

But down at the police station, the rules change. The police will offer the driver another breath test, this one involving a different type of machine.

Refusing to submit to that test will create driver’s license issues. Likewise, submitting to the test and registering at least .08% blood alcohol content will also have license consequences.

A reading of .08 or higher can be used as evidence of intoxicated driving. If the driver refuses the test, the prosecutor is allowed to argue to the jury that the refusal was intended to hide evidence of intoxication.

Furthermore, while either testing or refusing will have driver’s license consequences, a refusal will lead to a longer suspension from driving. In some cases, the suspension will be for as long at three years and no driving permit can be issued during that entire time.

Related posts:

Fourth Amendment Rights in Driving Under the Influence Prosecutions April 29, 2011, Illinois DUI Lawyer Blawg
Illinois Driving Under the Influence (DUI) and standardized field sobriety tests February 11, 2010, Illinois DUI Lawyer Blawg

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